EXHIBIT 10.2
LEASE
--------------------------------------------------------------------------------
Venture III Properties September 1, 1998 $ 10,428.00
(Owner/Landlord) (Lease Date) (Monthly Base Rent)
Rimage Corporation 28,440 SF $ None Paid
(Tenant) (Unit(s)) (Security Deposit)
Penn Avenue Building 5 years (60 mos) $________________ Paid
(Project) (Term) (First Month's Rent)
0000 Xxxx Xxxxxx Xxxxx September 1, 1998 $________________ Paid
(Address) (Beginning) (Improvements)
Bloomington, MN 55431 September 30, 2003 $________________ Paid
(City, State, Zip) (Ending) (Receipt By)
--------------------------------------------------------------------------------
THIS LEASE is made and entered into this 1st day of September, 1998
between Venture III Properties with its principal place of business at 7808
Creekridge Xxxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000 (herein called "Landlord"),
and Rimage Corporation a corporation organized under the laws of the State of
Minnesota wth its principal business at 0000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx, XX
55439 (herein called "Tenant", whether one or more).
WITNESSETH:
1. PREMISES.
In consideration of the obligation of Tenant to pay rent as herein provided, and
in consideration of the other terms, provisions and covenants hereof, Landlord
hereby leases to Tenant, and Tenant hereby takes from Landlord, certain Premises
(herein called the "Premises") situated in the County of Hennepin, State of
Minnesota, consisting of approximately 28,440 square feet of gross rentable area
outlined in red on the floor plan attached hereto Exhibit A and made a part
hereof in the building commonly known as Penn Avenue Building (herein called the
"Building") located at 0000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000 which
building is situated upon the real property described on Exhibit B attached
hereto and hereby made a part hereof (the Building and said real property are
herein called the "Project"), together with the right to use in common with
Landlord and other Tenants in the Project, and their employees, agents,
representatives and invitees, any common areas and facilities of the Project and
together with the right to use any parking area (herein called the "Shared
Parking area") located outside of the Project which is designated by Landlord,
by written notice from Landlord to Tenant, as a parking area which Tenant may
use in common with other parties designated by Landlord.
2. TERM.
This Lease shall be for a term of five (5) years and 0 months, commencing on
September 1, 1998, and expiring on September 30, 2003.
3. WORK LETTER.
Landlord, at its sole cost and expense, shall construct any leasehold
improvements required to be by Landlord constructed pursuant to the Work Letter
(herein called the "Work Letter") attached hereto as Exhibit C and made a part
hereof.
4. RENT.
Tenant shall pay Landlord, without deduction or setoff, an annual minimum rental
(herein sometimes called "Base Rent of:
One Hundred Twenty Five Thousand One Hundred Thirty Six and no/100 Dollars
($125,136.00)
payable, in advance, without demand, on or before the first day of each and
every month during the term hereof; provided, however, that if the term hereof
shall commence upon a day other than the first day of a calendar month or expire
upon a day other than the last day of the calendar month. Base Rent for the
partial calendar month shall be prorated on a per diem basis and shall be paid
by Tenant on the commencement date of the term hereof (in the case of an initial
partial month) or on the first day of the month in which the term hereof expires
(in the case of a terminal partial month).
5. SECURITY DEPOSIT.
Xxxxxx agrees to deposit with Xxxxxxxx on the date hereof the sum of
None
which sum shall be held by Xxxxxxxx, without obligation for interest, as
security for the performance of Tenant's covenants and obligations under this
Lease, it being expressly understood and agreed that such deposit is not an
advance rental deposit or a measure of Landlord's damages in case of Xxxxxx's
default. Upon the occurrence of any event of default by Tenant, Landlord may,
from time to time without prejudice to any other remedy provided herein or
provided by law, use such fund to the extent necessary to make good any areas of
rent and any other damage, injury, expense or liability caused by such event of
default, and Tenant shall pay to Landlord on demand the amount so applied in
order to restore the security deposit to its original amount. If Tenant is not
then in default hereunder, any remaining balance of such deposit shall be
returned by Landlord to Tenant upon termination of this Lease.
6. USE
Subject to the following provisions of this Paragraph 6, the Premises may be
used for any lawful purpose. Tenant shall comply with all governmental laws,
ordinances and regulations applicable to the use of the Premises and shall
promptly comply with all governmental orders and directives for the correction,
prevention and abatement of nuisances in, upon or connected with the Premises,
all at Tenant's sole expenses. Tenant shall not received, store or otherwise
handle any product, material or merchandise which is explosive or highly
inflammable and will not permit the Premises to be used for any purpose which
would render the insurance thereon void or the insurance risk more hazardous, or
increase the premiums therefore, and in the event of any such increase by reason
of any activity conducted by Tenant in, on or about the Premises, Tenant shall
be liable for such increase and shall reimburse Landlord therefor. Tenant shall
not store any material or merchandise outside the Premises.
7. OPERATING COSTS.
Prior to the commencement of the term of this Lease and prior to March 1 of each
calendar year thereafter, or as soon thereafter as practicable. Landlord shall
furnish Tenant with a written statement of the estimated operating costs per
square foot of gross rentable area of the Building for such calendar year.
During the remainder of such calendar year, Tenant shall pay Landlord at the
times that the monthly Base Rent is due and payable hereunder an amount equal to
one-twelfth (1/12) of the product of the number of gross square feet in the
Premises times such estimate. If Tenant's monthly payment of estimated operating
costs is greater than the monthly amount of operating expenses Tenant paid for
the then elapsed calendar months of such calendar year, then, within ten (10)
days after such written estimate is given. Tenant shall also pay to a Landlord
the deficiency for said elapsed calendar months. After the expiration of each
calendar year falling in whole or in part within the term hereof. Landlord shall
furnish Tenant with a written statement of the actual operating costs of the
Project (and ,if applicable, the Shared Parking Area) for the preceding calendar
year, and if such actual operating costs for such preceding calendar year are
more or less than the estimate, an appropriate adjustment shall be made within
ten (10) days after such written statement is furnished.
For the purposes hereof, operating costs shall be deemed to mean all taxes (both
general and special and whether now or hereafter enacted), assessments or
governmental charges levied or assessed against the Project (and, if applicable,
the Shared Parking Area) or any part thereof, and all costs which, for federal
tax purposes, may be expensed rather than capitalized, and which Landlord will
or does incur, pay or become obligated to pay in owning, maintaining, operating
and leasing the Project (and, if applicable the Shared Parking Area) and
appurtenances thereto, exclusive of interest and depreciation, Without limiting
the generality of the fore going operating costs shall include personal property
taxes, fees or permits or licenses, a management fee or fees not to exceed five
percent (5%) of the Base Rent, landscaping and gardening cleaning, painting,
decorating, paving, lighting, security guards, leasing and maintenance of music
and intercom systems. If any, removal of snow, trash, garbage and other refuse,
heating, ventilating and air-
2
conditioning, costs and expenses in connection with meeting federal state, or
local environmental energy standards, fire protection, water and sewage and
other utility charges not separately metered and charged to particular Tenants,
the cost of all types of insurance carried or paid for by Landlord, accounting
costs, all costs of maintaining, repairing and replacing paving, curb,
sidewalks, roadways, landscaping, drainage, lighting and utility systems, the
cost of maintaining and repairing the walls, roof and other portions of the
Building, the cost of maintaining and repairing all heating, ventilating and
air-conditioning equipment and depreciation thereof, rental changes for
machinery and equipment used in maintaining and operating the Project (and, if
applicable, the Shared Parking Area), salaries and compensation of personnel
connected with such operation and maintenance and deductible amounts payable
under insurance policies. Landlord, in its reasonable discretion, shall from
time to time determine the method of computing the operating costs, the
allocation of operating costs to various types of space within the Building, and
the extent of the appurtenances to the Project, and Tenant shall be bound
thereby.
Tenant's failure to pay Xxxxxx's share of operating costs in the manner herein
provided shall be treated hereunder in the same manner as a default in the
payment of Base Rent.
8. LANDLORD'S REPAIRS.
Landlord shall at its expense maintain only the roof, foundation and the
structural soundness of the exterior walls of the Building in good repair
reasonable wear and tear excepted. Tenant shall reimburse Landlord upon demand,
however, for any maintenance or repairs necessitated by the act or negligence of
Tenant for Tenant's employees, agents, representatives or invitees, or caused by
Xxxxxx's default hereunder. The term "walls" as used herein shall not include
windows, glass or plate glass or doors. Tenant shall immediately give Landlord
written notice of defect or need for repairs, after which Landlord shall have
reasonable opportunity to repair same or cure such defect. Xxxxxxxx's liability
hereunder shall be limited to the cost of such repairs or curing such defect.
9. TENANT'S REPAIRS.
Tenant shall at its own cost and expense maintain all other parts of the
Premises in good repair, reasonable wear and tear excepted and shall take good
care of the Premises and its fixtures and suffer no waste. Tenant will keep the
whole of the Premises in clean, sanitary and safe condition, and will at the
expiration or earlier termination of this Lease surrender the same to Landlord,
broom clean, and in the same order and condition as they were in at the
commencement of this Lease, reasonable wear and tear excepted.
10. ALTERATIONS.
Tenant shall not make structural additions or alterations to the Building or the
Premises or install any equipment which defaces the Building interior or
exterior or bolt or otherwise physically attach machinery or equipment to the
floors or walls of the Premises. Except for alterations which do not violate the
provisions of the proceeding sentence and the aggregate cost of which does not
exceed three (3) months Base Rent during any twelve (12) month period. Tenant
shall not make any alterations of, or additions to, the Premises without the
prior written consent of Landlord. Tenant will not permit any mechanics',
laborers' or materialmen's liens to stand against the Premises or the Project
for any labor or material furnished to, or for the account of, Tenant or claimed
to have been so furnished in connection with any work performed or claimed to
have been performed in, or about the Premises.
At the expiration or earlier termination of this Lease, Tenant shall, if the
Landlord so elects, remove all alterations and additions erected by Tenant and
restore the Premises to their original condition; otherwise such improvements
shall be delivered up to the Landlord with the Premises. All movable office
furnishings and trade fixtures installed by Tenant may be removed by Tenant at
the termination of this Lease if Tenant so elects, and shall be removed if
required by Landlord. All such removals and restoration shall be accomplished in
a good and workmanlike manner so as not to damage the primary structure or
structural qualities of the Premises. Personal property remaining in the
Premises at the expiration or earlier termination of the term of this Lease
shall be deemed abandoned, and Landlord may dispose of the same as Landlord
deems expedient.
11. SIGNS.
Tenant shall not erect any exterior signs, advertising media or lettering
without the prior written consent of Landlord. Any such items consented to by
Landlord and installed by Tenant shall comply with any applicable governmental
laws, ordinances, regulations and other requirements. Tenant shall remove all
such signs at the termination of this Lease. Such installations and removals
shall be made in such manner as to avoid injury or defacement of the Premises.
12. INSPECTION.
Upon reasonable notice to Tenant, Landlord and Landlord's agents and
representatives shall have the right to enter the Premises for the purpose of
ascertaining the condition thereof or in order to make such repairs as may be
required to be made by Landlord hereunder or as Landlord may deem necessary or
for the purpose of showing the Premises and shall have the right to erect on the
Premises a suitable sign indicating that the Premises are available for sale for
rent. Any such entry by Landlord shall never be deemed an eviction or
disturbance of Tenant's possession of the Premises, or render Landlord liable to
Tenant for damages, or relieve Tenant from performance of Tenant's obligations
under this Lease.
13. UTILITIES.
Tenant shall pay for all heating, air conditioning, ventilation, electricity,
gas, water, sewer, telephone, waste removal and other services and utilities
used in the Premises commencing on the date Tenant has access thereto for the
purpose of installing leasehold improvements and continuing throughout the term
hereof. All utilities, except water, will be separately metered and Tenant shall
contract for the same in its own name and shall promptly and directly pay all
charges for such utilities consumed in the Premises. If, in
3
Xxxxxxxx's opinion, Xxxxxx's use of water service is greater than the average
use of water service by other Tenants in the Project, Landlord may require
Tenant to install a separate meter for water and, in such an event, Tenant shall
pay the cost of purchasing, installing and maintaining such a metering device.
In the event that Tenant fails to install such a separate metering device within
thirty (30) days of notice of Landlord's requirement that such a device be
installed, Landlord may, but shall not be obligated to, install such a device
and all sums and incidental costs and expenses paid by Landlord in connection
with the purchase and installation of such device shall be payable by Tenant to
Landlord on demand.
Landlord does not warrant that any of the utilities and service referred to in
this paragraph, whether furnished by Landlord or by Landlord or by any other
supplier of any utility or other service will be free from interruption.
Interruption of service shall never be deemed an eviction or disturbance of
Tenants; use and possession of the Premises or any part thereof, or render
Landlord liable to Tenant from performance of Tenant's obligations under this
Leases.
14. ASSIGNMENT AND SUBLETTING.
Tenant shall not have the right to assign this Lease, by operation of law or
otherwise, or to sublet the whole or any part of the Premises without the prior
written consent of Landlord. Consent by Landlord to one or more assignment or
subletting shall not operate as a waiver of Landlord's rights under this
paragraph as to any subsequent assignment or subletting Notwithstanding any
permitted assignment or subletting, Tenant shall at all times remain fully
responsible and liable for the payment of the rent herein and for compliance
with all of its other obligations under the terms, provisions and covenants of
this Lease. If Tenant is a corporation or partnership or other entity, any
change in the control of Tenant shall be deemed to be an assignment which shall
require Landlord's consent as set forth above. Landlord shall have the right to
assign any of its rights under this Lease, and upon any such assignment, and
provided that the assignee assumes all of the Landlord's obligations hereunder,
Landlord shall be relieved of any and all such obligations.
15. FIRE OR OTHER CASUALTY DAMAGE.
A. If the Project or any part thereof is damaged or destroyed by fire or other
casualty. Landlord shall have the right to terminate this Lease, provided it
gives written notice thereof to Tenant within ninety (90) days after such damage
or destruction. If a portion of the Premises is damaged by fire or other
casualty and this Lease is not thereby terminated. Landlord shall, at its
expense, restore the Premises, exclusive of any improvements or other changes
made to the Premises by Tenant, to as near the condition which existed
immediately prior to such damage or destruction as reasonably possible, and rent
shall xxxxx during such period of times as the Premises are untenantable in the
proportion that the untenantable portion of the Premises bears to the entire
Premises. Landlord shall not be responsible to Tenant for damage to, or
destruction of, any furniture, equipment, improvements or other changes made by
Tenant in, or about the Premises regardless of the cause of the damage or
destruction.
B. Landlord and Tenant each hereby release the other from any and all liability
or responsibility to the other or anyone claiming through or under them by way
of subrogation or otherwise for any loss or damage to property caused by fire or
any of the extended coverage casualties covered by the insurance maintained
hereunder, even if such fire or other casualty shall have been caused by the
fault or negligence of the other party or anyone for whom such party may be
responsible; provided, however, that this release shall be applicable and in
force and effect only with respect to loss or damage occurring during such times
as the releasor's policies shall contain a clause or endorsement to the effect
that any release shall not adversely affect or impair said policies or prejudice
the right of the releasor to recover thereunder. Landlord and Tenant each agree
that it will require its insurance carriers to include in its policies such a
clause or endorsement.
C. Landlord covenants and agrees to maintain standard fire and extended coverage
insurance covering the Building in an amount not less than eighty percent (80%)
of the replacement cost thereof. Tenant covenants and agrees to maintain
standard fire and extended coverage insurance covering its property located in,
on or about the Premises in an amount not less than eighty percent (80%) of the
replacement cost thereof. Xxxxxx agrees that said property is kept in the
Premises Tenant's sole risk.
Tenant assumes full responsibility for protection the Premises from theft,
robbery and pilferage, which includes keeping doors locked and other means of
entry to the Premises closed and secured after normal business hours.
16. LIABILITY.
Tenant agrees to indemnify and save Landlord harmless against any and all
claims, demands, damages, costs and expenses, including reasonable attorney's
fees for the defense thereof, arising from the conduct or management of the
business conducted by Tenant in the Premises or from any breach or default on
the part of Tenant in the performances of any covenant or agreement on the part
of Tenant to be performed pursuant to the terms of this Lease, or from any act
or negligence of Tenant, its agents, contractors, servants, employees,
subleases, concessionaires, licenses or invitees, or any other person entering
upon the Premises under express or implied invitation of Tenant. In case of any
action or proceeding brought against Landlord by reason of any such claim upon
notice from Landlord, Tenant covenants to defend such action of proceeding by
counsel satisfactory to Landlord. Landlord shall not be liable and Tenant waives
all claims for damage to person or property sustained by Tenant or Tenant's
agents, contractors, servants, employees, subleases, concessionaires licensees
or invitees resulting from the Building or the Premises or any equipment or
appurtenances thereunto appertaining becoming out of repair, or resulting from
any accident in or about the Premises, the Project or resulting directly or
indirectly from any act or neglect of any other Tenant in the Project. This
shall, apply expressly, but not exclusively, to the flooding of the Premises,
and to damage caused by refrigerators, sprinkling devices air-conditioning
apparatus, water, snow, frost, steam,
4
excessive heat or cold, falling plaster, broken glass, sewage, gas, odors and
noise, or the bursting or leaking of pipes or plumbing fixtures. Tenant, at its
sole cost and expense, shall procure and maintain throughout the term hereof a
policy or policies of insurance. Insuring both Landlord and Tenant against all
claims, demands or actions arising out of or in connection with Xxxxxx's use or
occupancy of the Premises, or by the condition of the Premises, the limits of
such policy or policies to be in an amount not less than $1,000,000. 00 combined
single limits of liability, and to be written by insurance companies
satisfactory to Landlord and qualified to do business in the state in which the
Premises are located. Such policies or duly executed certificates of insurance
shall be promptly delivered to Landlord and renewals thereof as required shall
be delivered to Landlord at least ten (10) days prior to the expiration of the
respective policy terms, shall contain an agreement by the insurer that the same
may not be canceled or materially without at least ten (10) days' prior written
notice to Landlord.
17. CONDEMNATION
A. If the entire Project is taken by eminent domain, this Lease shall
automatically terminate as of the date of taking. If a portion of the Project is
taken by eminent domain, Landlord shall have the right to terminate this Lease
by giving written notice thereof to Tenant within ninety (90) days after the
date of taking. *If a portion of the Premises is taken by eminent domain and
this Lease is not thereby terminated, Landlord shall, at its expense, restore
the Premises, exclusive of any improvements or other changes made tot he
Premises by Xxxxxx, to as near the condition which existed immediately prior to
the date of taking as reasonable possible, and rent shall xxxxx during such
period of time as the Premises are untenantable in the proportion that the
untenantable portion of the Premises bears tot he entire Premises.
B. Any compensation or award paid or payable on account of any such taking shall
belong to, and be the sole property of , Landlord or the then owner or owners of
the Project
18. SURRENDER OF POSSESSIONS, HOLDING OVER
At the expiration or earlier termination of the term of this Lease, Tenant shall
return all keys to the Premises to landlord and shall surrender the Premises in
good condition and repair except for reasonable wear and tear, any repairs
specifically required herein to be performed by Landlord and loss by fire or
other causes covered by Xxxxxxxx's insurance. Should Tenant, or any of its
successors in interest, holdover the Premises or any part thereof, after the
expiration of the term of this Lease, without Xxxxxxxx's written consent, such
holding over shall, at the Landlord's option, constitute and be construed as a
tenancy from month to month only, at a rental equal to twice the rental payable
for the last month of the term of this Lease. The inclusion of the preceding
sentence shall not be construed as Landlord's permission for Tenant to hold
over.
19. QUIET ENJOYMENT
Landlord represents and warrants that it has full right and authority to enter
into this Lease and that Tenant, upon paying the rental herein set forth and
performing its other covenants and agreements herein set forth, shall peaceably
and quietly have, hold and enjoy the Premises for the term hereof without
hindrance or molestation from Landlord, subject to the terms and provisions of
this Lease.
20. EVENTS OF DEFAULT
Any one or more of the following events shall constitute an event of default
under this Lease:
A. If Tenant fails to pay, when due, any installment of Base Rent or Tenant's
share of operating costs or any other payment required to be by Xxxxxx paid
hereunder.
B. If Tenant fails to perform or comply with any of the other terms, conditions
and obligations of this Lease;
C. If a writ of execution, attachment or other process of law shall cause levy
on or against the property of Tenant or a receiver or trustees shall be
appointed for all or substantially all of the assets of Tenant;
D. If Tenant shall become insolvent, or shall make a transfer in fraud of
creditors, shall admit in writing its inability to pay its debts as they become
due, or shall commence any proceeding or file a petition under the provisions of
the Federal Bankruptcy Code for liquidation, reorganization or adjustment of
debts. or under any insolvency law or other statute or law providing for the
modification or adjustment of the rights of creditors, or shall file an answer
admitting to or not contesting the material allegations of a petition filed
against it in any such proceeding, or an order for relief shall be entered by a
federal Bankruptcy Court in any such proceeding or Tenant shall not, within
sixty (60) days after the commencement of any such proceeding or the filing of
any such petition without its consent, have the same dismissed or vacated, or
shall consent to the appointment of a custodian (as that term is defined in the
Federal Bankruptcy Code) for, or assignment to a custodian of, the whole or any
substantial part of its properties, or shall not, within sixty (60) days after
such an appointment or assignment without its consent or acquiescence, have such
appointment or assignment vacated or set aside;
E. If Tenant shall vacate or abandon the Premises or the Premises shall become
vacant; or
F. If Tenant shall have been notified by Landlord of a default by Tenant under
this Lease more than three (3) times in any calendar year.
21. REMEDIES.
Upon the occurrence of any of such events of default described in Paragraph 20
hereof, Landlord shall have the option of pursue any one or more of the
following remedies without any notice or demand whatsoever:
A. Terminate this Lease, in which event Xxxxxx shall immediately surrender the
Premises to Landlord, and if Xxxxxx fails so to do, Landlord may, without
prejudice to any other remedy which it may have for possession or arrearages in
rent, enter upon and take possession of the Premises and expel or removal Tenant
and any other person who may be occupying the Premises or any part thereof, by
force if necessary, without being liable for prosecution or any claim for
damages therefor, and Xxxxxx agrees to pay to Landlord on
5
demand the amount of all loss and damage which Landlord may suffer by reason of
such termination. In the event of termination of this Lease as aforesaid,
Landlord may elect to recover from Tenant, as and for liquidated damages for
loss of the bargain and not as a penalty, an amount equal to the difference
between (1) the Base Rent, Xxxxxx's share of operating costs and other charges
reserved hereunder for the period which otherwise should have been the balance
of the term hereof; and
B. Enter upon and take possession of the Premises and expel or remove Xxxxxx and
any other person who may be occupying the Premises or any part thereof, by force
if necessary, without being liable for prosecution or any claim for damages
therefore, all without terminating this Lease or any of Tenant's obligations
hereunder. In such event, Landlord may make alterations and repairs and
redecorate the Premises to the extent deemed by Landlord necessary or desirable,
and may relent the Premises, or any part thereof, for the account of Tenant, to
any person, firm or corporation, other than Tenant, for such rent, for such time
and upon such terms as Landlord, in Landlord's sole discretion, shall determine.
In so doing, Landlord shall not be required to accept any tenant offered by
Tenant or to observe any instruction given by Tenant concerning such reletting.
Any rent and other amounts received by Landlord upon such reletting shall be
applied first to the costs and expenses of Landlord in regaining possession of
the Premises, storing property removed from the Premises, making alterations or
repairs, redecorating the Premises and reletting the Premises including, without
limitation, brokerage and attorneys' fees and then such rent and other amounts
shall be applied to the Base Rent, operating costs and other obligations of
Tenant under this Lease, and Tenant agrees to pay to Landlord on demand any
deficiency that may arise by reason of such reletting.
C. Enter upon the Premises, by force if necessary, without liable for
prosecution or any claim for damages therefor, and do whatever Tenant is
obligated to do under the terms of this Lease, and Xxxxxx agrees to reimburse
Landlord on demand for any expenses which landlord may incur in thus effecting
compliance with Xxxxxx's obligations under this Lease, with interest as provided
in Paragraph 26F hereof, and Xxxxxx further agrees that Landlord shall not be
liable for any damages resulting to Tenant from such action, whether caused by
the negligence of Landlord or otherwise.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any of
the other remedies herein provided or any other remedies provided by law.
Landlord may at any time elect to terminate this Lease as described in A above
despite a prior election to exercise its remedies under B or C above. Pursuit of
any remedy herein provided shall not constitute a forfeiture or waver of any
rent due to Landlord hereunder or of any damages accruing to Landlord by reason
of the violation of any of the terms, provisions and covenants herein contained.
No waiver by Landlord of any violation or breach of any of the terms, provisions
and covenants herein contained shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions and
covenants herein contained. Xxxxxxxx's acceptance of the payment of rental or
other payments hereunder after the occurrence of an event of default shall not
be construed as a waiver of such default unless Landlord so notifies Tenant in
writing. Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to constitute
a waiver of such default. If, on account of any breach or default by Tenant in
Tenant's obligations under the terms and conditions of this Lease, it shall
become necessary or appropriate for Landlord to employ or consult with an
attorney concerning or to enforce or defend any of Landlord's rights or remedies
hereunder, Xxxxxx agrees to pay any reasonable attorneys' fees and a management
fee in the amount of Three Hundred and no/100 Dollars ($300.00). No act or thing
done by the Landlord or its agents during the term hereby granted shall be
deemed an acceptance of the surrender of the Premises, and no agreement to
accept a surrender of the Premises shall be valid unless in writing signed by
Landlord.
22. LANDLORD'S RIGHT TO CURE
If Tenant defaults in the making of any payment or the doing of any act required
to, make such payment or do such act, and the costs incurred by Landlord in
doing so, with interest thereon as provided in paragraph 26F hereof, shall be
paid by Tenant to Landlord upon demand. The making of such payment or the doing
of such act by Landlord shall not operate to cure such default by Tenant or to
prevent or stop Landlord from enforcing or pursuing any rights and remedies
which Landlord would other wise have.
23. MORTGAGES
Tenant accepts this Lease subject and subordinate to any mortgage(s) and/or
deed(s) of trust and/or ground lease(s) or other underlying leases(s) now or at
any time hereafter consulting a lien or charge upon the Premises, and Tenant
shall at any time hereafter on demand execute any instruments, releases or other
documents which may require by any mortgagee, trustee or lessor for the purpose
of subjecting and subordinating this Lease to the lien of any such mortgage,
deed of trust, ground leases or other underlying lease. In the event Tenant
fails to comply with any such demand within ten (10) days following the demand,
Tenant shall be deemed to have appointed Landlord as Xxxxxx's attorney-in-fact
to execute any such instruments, releases or other documents. With respect to
any mortgage(s) and/or deed(s) of trust and/or ground lease(s) or other
underlying lease(s) now or at any time hereafter created which constitute a lien
or charge upon the Premises, Landlord at its sole option shall have the right to
waive the applicability of this paragraph so that this Lease would not be
subject and subordinate to such mortgage(s) or deed(s) of trust or ground
lease(s) or other underlying lease(s).
24. NOTICES
Each provision of this instrument or of any applicable law or regulation with
reference to the sending, mailing or delivery of any notice or the making of any
payment by Landlord to Tenant or by Tenant to Landlord shall be deemed to be
complied with when and if the following steps are taken:
6
A. All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address hereinbelow set forth or
at such other address as Landlord may specify from time to time by written
notice delivered in accordance herewith.
B. Any notice or document required or permitted to be delivered hereunder shall
be deemed to be delivered, whether actually received or not, when deposited in
the United States mail, postage prepaid, certified or registered mail, addressed
to the parties hereto at the respective addresses set out opposite their names
below, or at such other address as they have theretofore specified by written
notice delivered in accordance herewith:
Landlord: Tenant:
0000 Xxxxxxxxxx Xxxxxx Xxxx. Rimage Corporation
0000 Xxxxxxxxxx Xxxxxx, #000 0000 Xxxxxxxxxx Xxxxxx Xxxxx
Minneapolis, MN 55439 Edina, MN 55439
C. Any notice or document required or permitted to be delivered hereunder by
Landlord to Tenant also shall be deemed to be delivered if an when delivered
personally to Tenant (or to an agent of Tenant if Tenant is not an individual)
at the Premises.
25. RULES AND REGULATIONS
Tenant shall use the Premises and the common areas of the project in accordance
with such rules and regulations as may from time to time be made by Landlord for
the general safety, convenience and comfort of the owners, occupants and tenants
of the project, and shall cause Tenant's employees, agents, representatives and
invitees to abide by such rules and regulations. The rules and regulations now
in effect are attached hereto as Exhibit D and are hereby made a part hereof,
and Tenant hereby acknowledges receipt of the same.
26. MISCELLANEOUS
A. Words of any gender used in this Lease shall be held and construed to include
any other gender, and words in the singular number shall be held to include the
plural, unless the context otherwise requires. The headings of the paragraphs of
this Lease are for convenience only and do not limit or define the contents of
said paragraphs.
B. The terms, provisions and covenants and conditions contained in this Lease
shall apply to, inure to the benefit of, and be binding upon, the parties hereto
and upon their respective heirs, legal representatives, successors and permitted
assigns, except as otherwise herein expressly provided.
X. Xxxxxx agrees, within ten (10) days after request of Landlord, or Landlord's
designee, including without limitation, the present or any future holder of a
mortgage(s) and/or deed(s) of trust and/or ground lease(s) and/or other
underlying lease(s) on the Premises, or any prospective purchaser of the
Premises, an estoppel certificate stating that this Lease is in full force and
effect, the date to which rent and other charges have been paid, the unexpired
term of this Lease, whether or not Landlord is in default hereunder, and the
nature of any such default, and such other matters pertaining to this Lease as
may be reasonably requested by Landlord.
D. If any term, provision or covenant of this Lease or the application thereof
to any person or circumstances shall, to any extent, be held to be invalid or
unenforceable, the remainder thereof and the application of such term, provision
or covenant to other persons or circumstances shall not be affected thereby, and
this Lease and all the terms, provisions and covenants hereof shall, in all
other respects, continue to be valid and enforceable and to be complied with to
the full extent permitted by law.
E. This Lease may not be altered, changed or amended except by an instrument in
writing signed by Landlord and Tenant.
F. Base Rent, Tenant's share of operating costs and all other payments required
of Tenant pursuant to the provisions of this Lease, shall be deemed rent due
hereunder whether or not so designated. All such rent shall bear interest from
the due date thereof (or from the date of advancement of funds by Landlord if
the payment by Xxxxxx is required by virtue of Landlord's advancement of funds
to cure Xxxxxx's default hereunder) until paid at a rate equal to the lesser of
(i) the highest rate permitted by law; and (ii) two (2) percentage points in
excess of the reference rate from time to time announced by First National Bank
of Minneapolis.
7
27. ACCEPTANCE BY LANDLORD.
This Lease shall not be binding upon Landlord until approved in writing by, and
signed by an officer of, Landlord, but this Lease may not be revoked or
terminated by Tenant for a period of ten (10) days from the date hereof.
EXECUTED the 1st day of September, 1998.
LANDLORD: CORPORATE OR BUSINESS TENANT:
Venture III Properties Rimage Systems, Inc.
By _________________________________
An agent but not an Officer
By /s/ Xxxxx Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxx
Its President Title President and CEO
Dated this 1st day of September, 1998. Dated this 1st day of September, 1998.
8
